Who Represents Children in Arizona Court Proceedings?
By: Deandra Arena
As a former Arizona Assistant Attorney General representing the Department of Child Safety, I’m used to children having legal representation at every hearing. As a family law attorney, representation of children in court proceedings is not as common and varies in nature.
In Arizona, there are several types of legal counsel that may be appointed to represent children, each with a slightly different role or purpose in the proceeding. It’s important to be educated on what type of legal representation for the child is most appropriate in your case. Arizona Law provides the following types of legal representatives for children: a guardian ad litem, an attorney for the child, a best interests attorney, and a court-appointed advisor (who is not required to be a lawyer). This article will discuss the breakdown of each of these roles.
A guardian ad litem (GAL) is an attorney appointed by the court to advocate for the best interest of the child. The best interest of the child is not what the child necessarily wants, but what the child needs. A common misconception exists that GALs are still utilized in family court proceedings, but that is not the case. GALs are appointed in juvenile, civil, and probate court proceedings. A GAL will inform the court what he or she believes is in the child’s best interest, which may or may not align with the child’s expressed wishes. In every juvenile dependency or severance matter, a GAL will automatically be appointed by the court. In Arizona family court proceedings, children are not automatically appointed counsel and there is no provision in the Arizona Rules of Family Law Procedure for the appointment of a GAL.
In Arizona family court proceedings, there are other options for legal representation of children. These options are outlined in Rule 10 of the Arizona Rules of Family Law Procedure. Rule 10 provides a court may appoint a best interests attorney or a child’s attorney. The court may appoint such an attorney for any reason the court deems appropriate. Therefore, the Court has wide latitude in appointing this type of attorney. The individuals appointed to these roles must be qualified through training or experience in the type of proceeding in which the appointment is made, as determined by the court, and both must be licensed to practice law.
At first glance, a best interests attorney and a child’s attorney may appear to serve the same purpose; however, there is a subtle distinction. A child’s attorney treats the child as a client and is tasked with representing the child’s desires and positions on the issues in the case, regardless of whether the attorney agrees with the child’s positions. For example, a 16-year-old child with divorced parents in a relocation matter may express that she wants to live with her mother in Canada instead of her father in Scottsdale. In this case, the attorney would advocate that the child should live with the mother in Canada because that is what their client desires.
A best interests attorney (BIA) has a slightly different role. The BIA advocates for the legal best interest of the child. The BIA advocates for what the child needs, and not necessarily what the child wants. Using the same example above with the 16-year-old, the BIA may decide that the legal best interest for the child is to stay with the father in Scottsdale even if the child wants to move to Canada with Mother. The BIA in a family court proceeding is almost identical to the role of a GAL in a juvenile or civil court proceeding because their purpose is to advocate strictly for the child’s best interest. The BIA may consider the child’s wishes as part of the best interest calculus, but the BIA is not obligated to agree with or advocate for the child’s position in every case.
Under Rule 10, both the BIA and the child’s attorney are appointed to act as an attorney for the child, which means that they cannot interact with the court ex parte and they cannot testify at court proceedings. They are not witnesses of the case even if they uncover valuable information during their investigations. The attorney also may not be compelled to produce the attorney’s work product or to disclose the source of information obtained as a result of the appointment. The attorney is given the authority to access the child and any information regarding the child, including school records, medical records, etc.
Lastly, Rule 10.1 of the Arizona Rules of Family Law Procedure provides that a court may appoint a qualified individual as a court appointed advisor (CAA) in a family court proceeding. Unlike a BIA or a Child’s attorney, A CAA does not have to be licensed to practice law. A CAA acts as an investigator for the court and may be an attorney, licensed social worker, licensed therapist, etc. A CAA gathers information through interviewing the parties and sometimes the children, as well as by reviewing records. The CAA then generates a report based on the interviews and review of the records and submits this report to the Court and the parties.
The CAA’s report typically includes the CAA’s recommendations for the case. The recommendations may be for the parties to participate in services, such as counseling or parenting classes. The recommendations may also include what the CAA believes is the most appropriate parenting schedule or legal decision-making arrangement. However, whether a CAA should make recommendations regarding legal decision-making and parenting time can be quite controversial—there is important debate regarding whether a CAA is qualified to assess the best interest factors in A.R.S. § 25-403 or to give advice to the court regarding the results of that analysis. Additionally, a CAA may not qualify as an expert under Arizona Rules of Evidence, Rule 702.
Because the CAA is not acting in the capacity of a lawyer, the CAA may be deposed and may testify at trial or hearings. The CAA’s role is strictly to make recommendations to the court. A CAA may also be appointed in a family court proceeding in conjunction with a child’s attorney or a best interest attorney because the CAA serves a different function, acting as an investigative agent of the court rather than directly advocating for a party.
Although having several different acronyms may make it more difficult for parties to keep track of who does what in their case, hopefully this article helped to clarify how these acronyms represent the multiple ways a child’s voice and/or best interests can be heard in family court and other proceedings. These appointments are meant to ensure that children are adequately and thoughtfully represented in proceedings in which the other parties, e.g. the parents, may be motivated by factors that distort their ability to advocate for the children. Understanding the types of appointments and their purposes helps to navigate the legal process more effectively and, at least in theory, improves legal outcomes for Arizona families.
Deandra Arena is an attorney at Woodnick Law, PLLC. She previously was an Assistant Attorney General for the Protective Services Section (DCS) in Arizona.